Wednesday, June 03, 2009

My malpractice is your problem

I ran across a strange comment thread at Kevin, MD's blog about whether a plaintiff in a medical malpractice case deserves any right to privacy regarding the particular complaint. The comments very aggressively argue that they do not. One comment really jumped out at me:

I also agree that once you file that malpractice lawsuit you are saying two (maybe three) things.

1) I think I was wronged
2) I think I deserve some cash
3) I will fight PUBLICLY for my rights

You can guarantee that the lawsuit will be registered as a complaint against the physician and freely searchable for all to see that it occurred. It should NEVER be allowed for a plaintiff in a malpractice lawsuit to be anonymous for this reason. They have to assume a “profile risk” that is commensurate with the physician’s, in my opinion.

If the patient actually was wronged, he or she still deserves their medical privacy. Probably even if they weren't. Patients seek doctors (who sometimes make mistakes) because they are human beings and therefore need medical care. Just because some doctor botched your procedure/care, you shouldn't have to publicly disclose information that is usually protected. The post above assumes that a malpractice suit is generally filed in bad faith. Also, the poster is clearly more worried about the black mark on a physician's record than the possibility that the plaintiff was wronged and the court will rightly decide the case. Most people aren't equipped to make a better decision about a malpractice case than the original judge and jury, or even the quack who got himself charged with malpractice.

I understand that cases are sometimes wrongly decided and people not at fault are punished, but I don't think that a chain of events caused by being alive should be grounds for a patient to lose privacy rights (such rights are something people agree to afford each other - it's not like we can blame fate for a policy of disclosing medical information. People make policies, but they don't get to decide whether they'll ever get sick.). In any case, who the patient is really isn't important to the question of whether they were harmed. Malpractice is malpractice even when it's visited upon someone who has a personal beef with their physician. The commenter's reasoning only applies to those who harass physicians for no good goddamn reason. It's not outside the realm of possibility that Joe Q. Patient hates a doctor's guts and will stop at nothing to see the doctor's career ruined, If a significant number of people had the inclination AND wealth to harass a physician with lawsuits such that it runs their career into the ground, I would be extremely surprised. It's rare that anyone, mean or not, has that kind of wealth, or a Punisher-like desire to ruin someone who also happens to be a doctor. The number of contingencies adds up to make a pretty small population. The reason that all medical facts need to be connected with a person's name in a malpractice suit is some number of people who A) have lots and lots of money and B) hate someone enough that they are willing to sacrifice that money and their time, plus C) the hated person is a doctor.

It also creates a disincentive for victims of malpractice regarding embarassing conditions to seek redress. So, specialize in the treatment of sexually-transmitted diseases and you don't have to worry about lawsuits.

I can't see it adding up to a good effect.

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